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What Immigration Reform Would Look Like

Passed by the state’s GOP legislature and signed by Republican Governor Gary Herbert in March, Utah’s plan is notable because it’s the first in the country that would allow undocumented immigrants to get a permit and work legally, after paying a fine of up to $2500 and meeting other conditions. The program is part of a larger package that includes increased scrutiny of immigrants who break the law. The compromise allows the state to address the economy’s demand for workers—thus reducing the incentive for illegal immigration—while satisfying voters who don’t want to reward those who arrived illegally.

Of course, states can’t just announce their own guest-worker programs – the federal government has plenary power over immigration – so Utah may need a waiver from the feds. Which might not be forthcoming, given politically tone-deaf and legally dangerous statements like this:

In a Senate Judiciary hearing on Wednesday, Attorney General Eric Holder said the law, which combines enforcement measures with a guest worker program, needs to be adjusted or face federal lawsuits. Pressed on whether the Administration planned to sue Utah, Mr. Holder said the Department of Justice “will look at the law, and if it is not changed to our satisfaction by 2013, we will take the necessary steps.”

“To our satisfaction?” What does Holder think an eventual federal immigration solution would look like? Here’s Cato’s proposal, but anything that gets through Congress will have to expand employment opportunities for both skilled and unskilled immigrants, normalize the status of current illegals, and otherwise refocus resources on criminals and terrorists.

But it’s not just the government that’s up in arms about Utah’s sensible legislation:

Like Arizona, Utah is already fending off lawsuits from the left. On Tuesday, the American Civil Liberties Union and the National Immigration Law Center sued to stop the portion of the law similar to the one in Arizona that enlists state and local police in the effort to identify illegal immigrants. In Utah’s version, anyone who is arrested for a felony or serious misdemeanor has to show proof of citizenship.

Good grief! State officials do not violate the Supremacy Clause – or engage in unconstitutional racial profiling – when they enforce federal law, which is what Utah’s enforcement measures, like most of Arizona’s, do. Critics naturally maintain that such enforcement decisions should be left to the feds but that only gets it half right: the federal government, particularly its executive branch, has discretion over how to prioritize enforcement priorities, but those discretionary decisions (which, after all, can change from one administration to another and even within one presidency) cannot preempt state law. Only federal law can do that.

This not a question of policy; while I generally like Utah’s plan, I’ve written before that Arizona’s (very different) SB 1070 is constitutional but mostly bad policy. The larger issue is states wanting to do something in the face of federal abdication. Some of Utah’s laws – the “plan” is actually five separate laws, covering the spectrum of immigration issues from expanding legal immigration (HB469, HB466) to addressing those already here for economic reasons (HB116) to addressing serious criminals (HB116, HB497) – may well end up losing in court, but they at least get national attention and to try to push federal action (SJR12).

As Rep. John Dougall, Vice Chair for Appropriations (#2 on the state budget), has explained to me, a major goal Utah had was to shift the dialogue from “enforcement only” to something more comprehensive, especially expanding legal immigration. A more controversial purpose was to plant the federalism flag, arguing that states share some of the jurisdiction over immigration. For example, Dougall wrote in an email to me that I quote with his permission, “HB469 rests on the belief that citizens should have the right to freely associate with anyone in the world, who don’t pose a public safety threat to others, and those citizens should be able to sponsor those immigrants in UT. A belief that the state should defend a citizen’s right to freely associate from an overly expansive federal government.”

I’m not fully convinced that some of this isn’t preempted – by federal law, not by what attorneys general or secretaries of homeland security say or do – but the goal is laudable and the classical liberal first principles are unassailable. The Utah model could work for other states looking to split the Gordian knot between the extremists on both sides whose “debate” generates into ”amnesty” versus “racism.” Texas Republicans have introduced similar legislation and other states’ lawmakers are also apparently interested.

That’s all to the good: even if you can’t enjoy the “greatest snow on earth” during the summer, anyone interested in innovative immigration reform should book a flight to Salt Lake City.